¹ See Mann, , An Issue of Coverage, Wash. Post, Feb. 13, 1987Google Scholar, at C3; Adler, , The AIDS Conflict, NEWSWEEK, Sept. 23, 1985, at 18;Google Scholar Thomas, , The New Untouchables, TIME, Sept. 23, 1985, at 24;Google Scholar Now No One is Safe from AIDS, LIFE, July 1985, at coverpage; see also Sotto, , Undoing a Lesson of Fear in the Classroom: The Legal Recourse of AIDS-Linked Children, 135Google Scholar UNIV. PENN. L. REV. 193, 193-94 & nn. *-5 (1986).

² Other researchers have assigned the names Human Immunodeficiency Virus (HIV), Lymphodenopathy Associated Virus (LAV), and AIDS Related Virus (ARV) to the virus which causes AIDS. WHY SHOULD YOU BE INFORMED ABOUT AIDS? 4 (C. Bete Co. ed. 1987). In this paper the virus will be referred to as HTLV-III unless an authority being quoted refers to the virus by one of its other names.

³ The operation of the human body's immune system is controlled by white blood cells. In a healthy human, there is a working balance among three types of white blood cells: Bcells, Helper T-cells and Suppressor T-cells. The B-cells produce antibodies which fight off diseases when they enter the human body. The Helper T-cells assist the B-Cells in fighting off the diseases, while the Suppressor T-cells stop the B-cells and Helper T-cells from producing any more antibodies once the invading disease has been stopped. Research indicates that HTLV-III attacks the Helper T-cells without affecting the Suppressor T-cells to the same degree. This creates an imbalance in the human body's immune system and leads to its eventual destruction. As a result, a person suffering from AIDS eventually dies because his or her body no longer can fight off infections. Id. at 4-5; AMERICAN SOC. HEALTH ASS'N, HIV AND AIDS 2 (Aug. 1986).

⁴ The high risk groups are individuals who received blood transfusions prior to March 1985, intravenous drug users and homosexuals and bisexuals. WHY SHOULD YOU BE INFORMED ABOUT AIDS?, supra note 2, at 3; AMERICAN SOC. HEALTH ASS'N, supra note 3, at 2.

⁵ Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, U.S. Dep't of Justice, Opinion Memorandum for Ronald E. Robertson, General Counsel, Dep't of Health & Human Serv. 4 n.3 (June 20, 1986)(citing Centers for Disease Control, Update: Acquired Immunodeficiency Syndrome — United States, 35 MORBIDITY & MORTALITY WEEKLY REP. 18-19 (Jan. 17, 1986))[hereinafter Cooper Opinion]; WHY SHOULD You BE INFORMED ABOUT AIDS?, supra note 2, at 3; AMERICAN SOC. HEALTH ASS'N, supra note 3, at 2. Medical researchers have determined that children born to women infected with HTLV-III either contract AIDS or become infected with HTLV-III while developing in the mother's womb, during birth or during the first few months of breast feeding. C. KOOP, SURGEON GENERAL's REPORT ON ACQUIRED IMMUNE DEFICIENCY SYNDROME 20 (1986).

⁶ See, e.g.. Chalk v: United States Dist. Ct., Cent. Dist. Calif., 840 F.2d 701 (9th Cir. 1988) (court held teacher diagnosed as having AIDS could not be barred from teaching classes, was not required to disprove all theoretical possibilities of harm and could not be denied a preliminary injunction against school on grounds that his return to classroom would produce fear and apprehension in parents and students); American Council Life Ins. v. District of Columbia, 645 F. Supp. 84 (D.D.C. 1986)(court upheld ordinance which prohibited health, life and disability insurers from discriminating on the basis of AIDS testing); Codero v. Coughlin, 607 F. Supp. 9 (S.D.N.Y. 1984)(court dismissed constitutional claims of AIDS prisoners who had been segregated from the general prison population); AIDS-Phobic Judges Probed, NAT'L L.J., Feb. 6, 1989, at 6 (Thirteen groups have filed a complaint with the Alabama Judicial Inquiry Commission against district judges Jack Montgomery, O.L.Johnson and Mike McCormick. In December 1988, the judges had expressed concern that if a defendant with AIDS turned violent while in the courtroom, he or she either might bite someone or bleed as a result of injuries he or she sustained. The groups claim that the judges’ statements, which question the right of defendants with AIDS to be in the courtroom, are a denial of the constitutional rights of these defendants.); but see City of N.Y. v. New St. Mark's Baths, 130 Misc. 2d 911, 497 N.Y.S. 2d 979 (1986)(court upheld state's police power to use its public nuisance laws to close defendant's bath houses after proof had been submitted that the facilities were being used on a continuous and regular basis for high risk sexual activities which were connected with the transmission of AIDS).

⁷ Sotto, supra note 1, at 194 n. 10 (1986).

⁸ Friedland, Saltzman, Rogers, Kahl, Lesser, Mayers & Klein, Lack of Transmission ofHTLVIII/ LAV Infection to Household Contacts of Patients with AIDS or AIDS-related Complex with Oral Candidiasis, 314 NEW ENC. J. MED. 344 (1986)[hereinafter Friedland, Saltzman]; C. KOOP, supra note 5, at 3, 19-20; AMERICAN SOC. HEALTH ASS'N, supra note 3, at 2. It has been stated repeatedly by the Centers for Disease Control and other medical experts that unlike other contagious diseases, AIDS can not be transmitted through casual contact. Rogers, AIDS in Children, N.Y. MED. Q, 68, 72 (1987); C., KOOP, supra note 5, at 19–20;Google Scholar Rogers, AIDS in children: A review of the clinical, epidemiological and social problems, 24 ANALES ESPANOLES DE PEDIATRIA 122, 123-24 (1986); Rogers & Lifson, Acquired Immunodeficiency Syndrome and HTLV-III/LAVInfection, 2 SEMINARS ADOLESCENT MED. 163, 169-70 (1986).

⁹ Peterman, Cates, Jr. & Curran, The challenge of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) in women and children, 49 FERTILITY & STERILITY 571, 574- 75 (1988)(citing Peterman, Stoneburner, Allen, Jaffe & Curran, Risk of HIV transmission from person with transfusion-associated infections, 259 J. AM. MED. ASS'N 55 (1988); Jason, McDougal, Dixon, Lawrence, Kennedy, Hilgartner, Aledort & Evatt, HTLV-III/LAV antibody and immune status in household contacts and sexual partners of persons with hemophilia, 255 J . AM. MED. ASS'N 788 (1987); Lawrence, Jason, Bouhasin, McDougal, Knutsen, Evatt & Joist, HTLV-III/LAV antibody status of spouses and household contacts assisting in home infusion of hemophilia patients, 66 BLOOD 703 (1986)); Friedland, Saltzman, Rodgers, Kahl, Feiner & Mayers, Additional evidence for lack of transmission of HIV infection to household contacts of AIDS patients, paper presented at third International Conference on AIDS in Washington, D.C. (June 2, 1987); Friedland, Saltzman, supra note 8, at 344, 348. These studies concluded that household members face either no risk or a minimal risk of infection with HTLV-III from an AIDS or ARC patient in their house. The doctors and nurses who conducted these studies reached this conclusion despite the fact that

Friedland, Saltzman, supra note 8, at 348. The Friedland, Saltzman study also noted that even if most types of household contacts were reduced after a family member had been diagnosed as having AIDS or ARC “a high percentage of household members assisted the [AIDS or ARC] patient with bathing, dressing, and eating,” id. at 345, and that none of these individuals became infected with the virus.

¹⁰ See, e.g., Martinez v. School Dist. Bd. Hillsborough County, Fla., 675 F. Supp. 1574 (M.D. Fla. 1987); Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524 (M.D. Fla. 1987); Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376 (M.D. Cal. 1987); Board of Educ. v. Cooperman, 105 NJ. 587, 523 A.2d 655 (1987); District 27 Community School v. Board of Educ, 130 Misc. 2d 389, 502 N.Y.S.2d 325 (1986); see also Robertson v. Granite City Community Unit Dist. No. 9, 684 F. Supp. 1002 (S.D. 111. 1988)(The court held seven-year-old hemophiliac boy who was suffering from ARC was not “handicapped” within the meaning of the Education for All Handicapped Children Act, but was a “handicapped individual” within the meaning of the Rehabilitation Act. The child had to be admitted to the normal classroom environment because he would experience irreparable harm if the school continued to keep him in a separate modular classroom in which he was the only student); Doe v. Belleville Pub. School Dist. No. 118, 672 F. Supp. 342 (S.D. 111. 1987)(court denied defendant's motion to dismiss because the Education for All Handicapped Children Act did not apply to a student with AIDS who had been barred from attending classes; but the student was a “handicapped individual” under § 504 of the Rehabilitation Act of 1973).

¹¹ Pub. L. No. 93-112, 87 Stat. 394 (codified as amended at 29 U.S.C. § 794 (1987)).

¹² Cf. Martinez, 675 F. Supp. at 1583.

¹³ A number of the early AIDS cases were caused by receiving transfusions of blood to blood products tainted with HTLV-III. This problem has been eliminated almost completely by the development of a blood screening test on March 1985. If the individual tests seropositive because AIDS antibodies are found in his or her blood, then the blood is discarded and neither it nor its blood products will be used in transfusions.

¹⁴ Those individuals who received blood transfusions prior to March 1985 are considered to be a high risk group. C. KOOP, supra note 5, at 3. The other high risk groups for contracting AIDS are individuals who either are intravenous drug users, homosexuals or bisexuals. WHY SHOULD YOU BE INFORMED ABOUT AIDS?, supra note 2, at 3; AMERICAN Soc. HEALTH ASS'N, supra note 3, at 2.

¹⁵ But see supra note 9 and accompanying text.

¹⁶ C. KOOP, supra note 5 (stating AIDS can not be transmitted through casual contact); cf. W. MASTERS, V. JOHNSON & R. KALODNY, CRISIS: HETEROSEXUAL BEHAVIOR IN THE AGE OF AIDS (1988)(authors stated that based on their own research and studies of others there is evidence that AIDS can be transmitted through casual contact); Masters & Johnson, Sex in the Age of AIDS, NEWSWEEK, Mar. 14, 1988, at 45 (authors state that based on own research and studies of others they have “concludefd] categorically, that infection with the AIDS virus does not require intimate sexual contact or sharing of intravenous needles: transmission can, and does occur as a result of person-to-person contact in which blood or other body fluids from a person who is harboring the virus are splashed on or are rubbed against someone else“); Monmaney, The AIDS Threat: Who's at Riskt, NEWSWEEK, Mar. 14, 1988, at 42 (discusses the results of Masters and Johnson's study of 800 men and women between the ages of 21 and 40 which led to the doctors claiming that the virus was breaking out of the traditional risk groups); see also District 27, 130 Misc. 2d at 413, 502 N.Y.S.2d at 335 (noting that there can never be universal agreement in the field of medicine because people have different views).

¹⁷ See Jacobson v. Massachusetts, 197 U.S. 11 (1905)(Court upheld statute which required that all inhabitants in areas where smallpox was prevalent be vaccinated noting that it was reasonably related to the state's concern for the health, safety and welfare of others); State ex rel. Holcomb v. Armstrong, 39 Wash. 2d 860, 239 P.2d 545 (1952)(court upheld a state university's authority to examine all students for evidence of active tuberculosis); Stone v. Probst, 165 Minn. 361, 206 N.W. 642 (1925)(court upheld school board's requirement that a child who had been excluded from school for having a sore throat provide the school with a doctor's certificate and negative throat culture before being readmitted to classes); People ex rel. Barmore v. Robertson, 301 111. 422, 134 N.E. 815 (1922) (court upheld isolation of a healthy woman who was a carrier of the typhoid fever virus); Martin v. Craig, 42 N.D. 213, 173 N.W. 787 (1919) (court upheld exclusion of two children from the classroom until they had been treated for trachoma even though evidence presented at the trial raised questions as to whether the children actually were infected with the contagious disease); Viemeister v. White, 179 N.Y. 235, 72 N.E. 97 (1904)(court held that “[a] child afflicted with leprosy, smallpox, scarlet fever or any other disease which is both dangerous and contagious, may be lawfully excluded from attendance so long as the danger of contagion continues“); Potts v. Breen, 167 111. 67, 47 N.E. 81 (1897)(court held that board of health officials, if they believed it was necessary to protect the public's health, could exclude children who had been exposed to smallpox from school on a temporary basis); Duffield v. School Dist. Williamsport, 162 Pa. 476, 29 A. 742 (1894) (court upheld school district's decision to exclude a child who refused to comply with vaccine regulations).

¹⁸ B. ROSENKRANTZ, PUBLIC HEALTH AND THE STATE 110 (1972), cited in Note, Protecting Children with AIDS Against Arbitrary Exclusion from School, 74 CALIF. L. REV. 1373, 1377 & n.24 (1988)[hereinafter Protecting Children with AIDS]. In Massachusetts in the late 1800s and early 1900s, if a family member had diphtheria, smallpox or scarlet fever, the children in the household were quarantined with the rest of their family until two weeks after the infected family member died or recovered from the disease. Id.

¹⁹ SeeJacobson, 197 U.S. at 11; Armstrong, 39 Wash. 2d at 864, 239 P.2d at 548; Stone, 165 Minn, at 365-66, 206 N.W. at 644; Robertson, 302 111. at 432-33, 143 N.E. at 819; Martin, 42 N.D. at 216, 173 N.W. at 788; Viemeister, 179 N.Y. at 239, 72 N.E. at 98; Potts, 167 111. at 75, 47 N.E. at 84; Duffield, 162 Pa. at 484, 29 A. at 743.

Due to its rapid spread, high fatality rate and incurability, AIDS has been compared to leprosy and the bubonic plague. The epidemiology of the AIDS virus, however, is different from these two diseases which are easily transmitted to others through casual contact because the AIDS virus is transmitted only through the exchange of body fluids or blood-to-blood contact. Protecting Children with AIDS, supra note 18, at 1374-78

²⁰ The words communicable, contagious and infectious often are used interchangably by lay persons when describing different diseases. The terms, however, have different meanings. A communicable disease is capable of being transmitted or communicated to others. STEDMAN's MEDICAL DICTIONARY 303 (W. Dornete ed. 4th ed. 1976)[hereinafter STEDMAN'S]; THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 269 (W. Morris Ed. 1973)[hereinafter AMERICAN HERITAGE]. A contagious disease is transmitted by direct or indirect contact. STEDMAN'S, supra at 313; AMERICAN HERITAGE, supra at 287. An infectious disease is capable of being transmitted by a mircroorganism invading an individuals’ body with or without the individual having actual contact. STEDMAN'S, supra, at 704; AMERICAN HERITAGE, supra, at 673.

Each state is able to decide into which category it will place a disease. The standards and methods for determining this classification vary from state to state. The Centers for Disease Control, however, maintains a master list of the diseases which have been classified by various states as contagious, communicable or infectious. Telephone interview with Public Inquiries Officer at the Centers for Disease Control in Atlanta, Georgia (Feb. 23, 1989); see also District 27, 130 Misc. 2d at 409-10, 507 N.Y.S.2d at 333-34 (discussing the State of New York's classification of contagious, communicable and infectious diseases).

²¹ See generally Centers for Disease Control, Education and Foster Care of Children Infected with Human T-Lymphotropic Virus Type IIIVLymphadenopathy-Associated Virus, in CENTERS FOR DISEASE CONTROL, AIDS: RECOMMENDATIONS AND GUIDELINES NOVEMBER 1982-NOVEMBER 1986 (1987) [hereinafter Education & Care of HTLV-III Children]; AMERICAN ACADEMY OF PEDIATRICS, REPORT ON THE COMMITTEE ON INFECTIOUS DISEASES (1986)[hereinafter AAP REPORT].

²² See Education 6f Care of HTLV-III Children, supra note 21, at 55-57 (stating that it may be advisable to place an infected child in a more restricted school setting if he or she is unable to control his or her bodily secretions; exhibits aggressive behavior, such as biting; or has open skin sores which can not be covered); AAP REPORT, supra note 21 (placing an infected child in a more restricted school setting may be advisable if the child is unable to control his or her bodily secretions; exhibits aggressive behavior, such as biting; or has open skin sores which can not be covered).

²³ Protecting Children with AIDS, supra note 18, at 1374 & n.4.

²⁴ Pub. L. No. 93-112, 87 Stat. 394 (codified as amended at 29 U.S.C. § 794 (1987)).

²⁵ Id.

²⁶ Pub. L. No. 88-352, 78 Stat. 252 (codified as amended at 42 U.S.C. § 2000d-l (1987)).

²⁷ Pub. L. No. 92-318, 86 Stat. 373 (codified as amended at 42 U.S.C. § 168(a)(1987)).

²⁸ 29 U.S.C. §791 (1987).

²⁹ See Wegner, The Antidiscrimination Model Reconsidered: Ensuring Equal Opportunity Without Respect to Handicap Under Section 504 of The Rehabilitation Act of 1973, 69 CORNELL L. REV. 401, 403 & nn. 2-4 (1984)(tracing the changes in the prejudicial treatment of the handicappedfrom the time of the Old Testament to the mid-1970s); see also City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)(noting that negative attitudes and unsubstantiated fear were not permissible bases under the equal protection clause for requiring a home for the mentally retarded to obtain a special building permit when other multiple dwelling and care facilities were not required to obtain special permits).

³⁰ In Consolidated Rail Corp. v. Darrone, the Court explicitly recognized a private cause of action under § 504. Darrone, 465 U.S. 624, 630-31, 634 (1984); see S. REP. NO. 1297, 93d Cong., 2d Sess. 39-40, reprinted in 1974 U.S. CODE CONG. & ADMIN. NEWS 6,373, 6,390; see also 29 U.S.C. § 794 (recipients of federal financial assistance include executive agencies, the United States Postal Service, state, public and private organizations and individuals).

³¹ The Act defines having “a record of an impairment” to mean that the individual “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” 45 C.F.R. § 84.3(j)(2)(iii) (1987)(emphasis added).

³² An individual who is “regarded as having an impairment“:

Id. at § 84.3(j)(2)(iv) (emphasis added).

³³ Id. at § 84.3(B)(j)(l).

³⁴ Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979)(Court held respondent who had serious hearing disability was not “otherwise qualified” to participate in the college's nursing program).

³⁵ In 1978, Congress amended the Rehabilitation Act to make available all of “the remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964 “to individuals who bring suits under § 504 of the Rehabilitation Act. Pub. L. No. 95-602, 92 Stat. 2982 (codified as amended at 29 U.S.C. § 794(a)(2) (1987)); cf. Cooper, Attorney Fees Not Reimbursable In Suit Over Student With AIDS, NAT'L L.J., Feb. 13, 1989, at 18.

In Child v. Spillane, the Court of Appeals for the Fourth Circuit held that the mother of a five-year-old child with AIDS, who won her suit under § 504 of the Rehabilitation Act to have her child readmitted to regular kindergarten classes, was not entitled to attorney's fees. The fees could not be awarded because the mother could not be considered to be a prevailing party. The court reasoned, that in order for the mother to be a prevailing party, either the AIDS policy being developed by the school board would have to refer to her child directly, or the lawsuit would have had “to contribute to or expedite the readmission of the child to kindergarten.” Child, No. 88-2072 (4th Cir.Jan. 26, 1989), in Cooper, supra, at 18.

Although the Court has not addressed directly the question of when compensatory as well as injunctive relief is available in § 504 actions, the Court has suggested that compensatory relief should not be awarded unless the plaintiff is able to prove intentional discrimination. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 & n.9 (1984)(citing Guardian Ass'n v. Civil Serv. Coram., 463 U.S. 582, 624-34, 635-39 (1983)(Court stated that § 504 clearly “authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for backpay“)); Guardian Ass'n, 463 U.S. at 584 & n.2. Although the Court in Guardian Association affirmed the court of appeals judgment that compensatory damages could not be awarded under Title VI unless there was proof of discriminatory intent, only three of the five justices of which the majority was comprised believed that Title VI itself required proof of discriminatory intent. Id. at 635, 639 (Brennan, Blackmun & Stevens, J.J., concurring). The other two justices in the majority, Justices White and Marshall, believed that under Title VI only proof of disparate-impact discrimination was needed. Id. at 584, 615. Justices White and Marshall, however, also affirmed the judgment below because the plaintiffs had not shown any proof of disparate impact. Id; see also Flaccus, Discrimination Legislation for the Handicapped: Much Ferment and the Erosion of Coverage, 55 CINN. L. REV. 81, 90-91 (1986).

³⁶ 245 C.F.R. § 84.3(j)(2)(i) (1987).

³⁷ Gurmankin v. Costanzo, 411 F. Supp. 982 (E.D. Pa. 1976), aff'd, 556 F.2d 184 (3d Cir. 1977), appeal dismissed, 614 F.2d 770 (3d Cir. 1980), cert, denied, 450 U.S. 923 (1981).

³⁸ Halderman v. Pennhurst State School & Hosp., 446 F. Supp. 1295 (E.D. Pa. 1977), aff'd in part, rev'd in part on other grounds 612 F.2d 84 (3d Cir. 1979).

³⁹ In 1977, the Attorney General issued the opinion that for the purposes of § 794 the term “handicapped individual” included alcoholics and drug addicts. See 43 Op. Atty. Gen. (Apr. 12, 1977). In 1978, however, when Congress amended the Rehabilitation Act, it reduced the number of programs and activities in which an individual who is an alcoholic or drug abuser will be considered a handicapped person. As a result, an individual who is an alcoholic or drug abuser only will be considered a “handicapped individual” for the purposes of discriminatory actions by a preschool, elementary, secondary or postsecondary education program or activity, or by a health, welfare or other social service program. But in the area of employment practices, an individual “who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others” will not be considered a “handicapped individual.“ Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No. 95-602, § 122(a)(6), 92 Stat. 2,955, 2,984-85 (codified as amended at 29 U.S.C. § 706(7)(B) (1987)). If, however, the individual is a victim of employment discrimination because she is a former alcoholic or drug abuser, then she will be considered a “handicapped individual” for the purpose of employment practices and will be able to bring a claim under the Rehabilitation Act. Id.

⁴⁰ See supra note 39.

⁴¹ School Bd. Nassau County, Fla. v. Arline, 480 U.S. 273 (1987)(Court held plaintiff who had tuberculosis to be handicapped individual); Kohl by Kohl v. Woodhaven Learning Center, 672 F. Supp. 1221 (W.D. Mo. 1987)(court held plaintiff who was an active carrier of hepatitis B to be a handicapped individual).

⁴² 480 U.S. 273 (1987).

⁴³ Id. at 276-77 (cultures revealed that tuberculosis was active in her system in 1977, March 1978 and November 1978).

⁴⁴ Id. at 277.

⁴⁵ Id.

⁴⁶ Id. at 280-81.

⁴⁷ Id. at 281-82.

⁴⁸ Id. at 279 (quoting S. REP. NO. 93-1297, at 50 (1974), reprinted in 1974 U.S. CODE CONG. & ADMIN. NEWS at 6,400).

⁴⁹ Id. at 284.

⁵⁰ I. CHASNOFF, J. ELLIS & Z. FAINMAN, FAMILY MEDICAL GUIDE 456 (1983)(noting that 80% of the people who are infected with the tuberculosis bacteria never develop an active case of tuberculosis); STEDMAN'S, supra note 20, at 1495.

⁵¹ I. CHASNOFF, J. ELLIS & Z. FAINMAN, supra note 50, at 455-56.

⁵² Arline, 480 U.S. at 285 (emphasis in original).

⁵³ Id. at 287.

⁵⁴ Id. at 288.

⁵⁵ Id.

⁵⁶ Id.

⁵⁷ See Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987)(court noted an employer cannot deny a handicapped employee alternative employment opportunities which are reasonably available under its present policies although an employer is not required to find the employee another job if she is not qualified for the job which she was doing); Perez v. Philadelphia Housing Auth., 677 F. Supp. 357, 359 (E.D. Pa. 1987)(court held PHA was obligated to provide plaintiff, who was handicapped by severe back injury, with the simple accommodations she needed in order to perform her job; these accommodations included a wooden straight back chair, the use of the elevator in the building and coverage for regular breaks because her injury was aggravated by long periods of sitting, standing and negotiating steps).

⁵⁸ Arline, 480 U.S. at 287 n.16.

⁵⁹ Southeastern Community College v. Davis, 442 U.S. 397, 412 (1979), quoted in Arline, 480 U.S. at 287 n. 17.

⁶⁰ Davis, 442 U.S. at 410.

⁶¹ See Alexander v. Choate, 469 U.S. 287 (1985); Davis, 442 U.S. at 412.

⁶² 45 C.F.R. § 84.126 (1987). For examples of reasonable accommodations in the employment context, see supra note 57.

⁶³ See Davis, 442 U.S. at 410-12; Doe v. New York Univ., 666 F.2d 761 (2d Cir. 1981); Pinkerton v. Moye, 509 F. Supp. 107 (W.D. Va. 1981).

⁶⁴ See infra text accompanying notes 96-104.

65Arline, 480 U.S. 273, 285-87 (1987).

⁶⁶ See Jacobson v. Massachusetts, 197 U.S. 11 (1905)(Court upheld statute which required that all inhabitants in areas where smallpox was prevalent be vaccinated noting that it was reasonably related to the state's concern for the health, safety and welfare of others); State ex rel. Holcomb v. Armstrong, 39 Wash. 2d 860, 239 P.2d 545 (1952) (court upheld a state university's authority to examine all students for evidence of active tuberculosis); Stone v. Probst, 165 Minn. 361, 206 N.W. 642 (1925)(court upheld school board's requirement that a child who had been excluded from school for having a sore throat provide school with a doctor's certificate and negative throat culture before being readmitted to classes); Martin v. Craig, 42 N.D. 213, 173 N.W. 787 (1919)(court upheld exclusion of two children from the classroom until they had been treated for trachoma even though evidence presented at the trial raised questions as to whether the children actually were infected with the contagious disease); Viemeister v. White, 179 N.Y. 235, 72 N.E. 97 (1904)(court held that “[a] child afflicted with leprosy, smallpox, scarlet fever or any other disease which is both dangerous and contagious, may be lawfully excluded from attendance so long as the danger of contagion continues“); Potts v. Breen, 167 111. 67, 47 N.E. 81 (1897)(court held that board of health officials, if they believed it was necessary to protect the public's health, could exclude children who had been exposed to smallpox from school on a temporary basis); Duffield v. School Dist. Williamsport, 162 Pa. 476, 29 A. 742 (1894)(court upheld school district's decision to exclude a child who refused to comply with vaccine regulations).

⁶⁷ See, e.g., Jew Ho v. Williamson, 103 F. 10 (3d Cir. 1900)(court held a quarantine of a twelve square block area of San Francisco after nine people in the community had died from bubonic plague was violative of the equal protection clause because quarantine, as applied, was not rationally related to preventing the spread of the disease); People ex rel. Barmore v. Robertson, 302 111. 422, 134 N.E. 815 (1922)(court upheld isolation of a woman who was a typhoid carrier stating that “[w]hen danger of an epidemic actually exists, health and quarantine regulations will always be sustained; but the health regulations are all sustained on the law of necessity, and when the necessity ceases the right to enforce the regulations ceases“); In re Smith, 146 N.Y. 68, 40 N.E. 497 (1895)(city health officials could not require two deliverymen who were not infected and who had not been exposed to smallpox to be quarantined on the basis that they could become infected).

⁶⁸ Arline, 480 U.S. at 288.

⁶⁹ Southeastern Community College v. Davis, 442 U.S. 397, 412 (19/'9); Arline, 480 U.S. at 288-89; see supra text accompanying notes 57-60.

⁷⁰ Arline, 480 U.S. at 282 n.7.

⁷¹ Id. at 276-77, 281-82.

⁷² Id.

⁷³ See Note, Asymptomatic Infection With the AIDS Virus as a Handicap Under the Rehabilitation Act of 1973, 88 COLUM. L. REV. 563, 570-74 (I988)[herematter Asymptomatic Infection]; see also D. Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, U.S. Dep't of Justice, Memorandum for Arthur B. Culvahouse, Jr., Counsel to the President on the Application of Section 504 of the Rehabilitation Act to HIV-infected Individuals 2, 6-9 (Sept. 27, 1988)[hereinafter Kmiec opinion] (noting that contagiousness “does not excuse or justify discrimination against individuals handicapped by symptomatic [or asymptomatic] HIV infection, “the opinion stated HIV infection is a physical impairment which substantially limits major life activities).

⁷⁴ CENTERS FOR DISEASE CONTROL, AIDS: RECOMMENDATIONS AND GUIDELINES NOVEMBER 1982-NOVEMBER 1986 19 (Supp. 1988)(Appendix II). The Centers for Disease Control has classified the symptoms of the AIDS virus into four groups. These four groups are; “(1) early acute, though transient, signs of the disease; (2) asymptomatic infection; (3) persistent swollen lymph-nodes; and (4) presence of opportunistic disease and/or rare types of cancer.“ Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376, 379 (CD. Cal. 1987).

⁷⁵ Board of Educ. v. Cooperman, 507 A.2d 253, 265 (N.J. Super. A.D. 1987)(quoting CITY OF NEW YORK HEALTH DEP'T, AIDS: A SPECIAL REPORT ON AQUIRED IMMUNODEFICIENCY SYNDROME (1986)).

⁷⁶ See id. at 265-66; Martinez v. School Bd. Hillsborough County, Fla., 675 F. Supp. 1574 1576-78 (M.D. Fla 1987).

⁷⁷ Cooperman, 507 A.2d at 165 (quoting CITY OF NEW YORK HEALTH DEP'T, AIDS: A SPECIAL REPORT ON ACQUIRED IMMUNODEFICIENCY SYNDROME (1986)).

⁷⁸ Local 1812, Am. Fed. Gov. Employees v. United States Dep't of State, 662 F. Supp. 50, 54 (D.D.C. 1987).

⁷⁹ Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524, 1536 (M.D. Fla. 1987); District 27 Community School Bd. v. Board of Educ, 130 Misc. 2d 398, 415, 502 N.Y.S.2d 325, 336 (1986); Asymptomatic Infection, supra note 73, at 563-65 & n.9, 573 (discussing the fact that fear of contagion is the major impetus behind discrimination against both asymptomatic HTLV-III carriers and AIDS victims).

⁸⁰ For the Rehabilitation Act's definition of physical and mental impairments, see supra text accompanying notes 36-41.

⁸¹ See CENTERS FOR DISEASE CONTROL, AIDS: RECOMMENDATIONS AND GUIDELINES NOVEMBER 1982-NOVEMBER 1986 (1987).

⁸² See District 27, 507 N.Y.S.2d at 328 (this portion of opinion was not published in New York's Miscellaneous Second Reporter).

⁸³ See generally Asymptomatic Infection, supra note 73; see also Cooper opinion, supra note 5, cited in Kmiec opinion, supra note 73, at 2 n.4 & 5 n.7. The Cooper opinion was superceded by the Kmiec opinion.

⁸⁴ Asymptomatic Infection, supra note 73, at 571 (noting that hypertension and cancer, physical impairments which are recognized under 504, often are asymptomatic in the early stages of the disease); see Letter from Surgeon General C. Everett Koop of the Public Health Service of the Department of Health & Human Services to Douglas Kmiec. Acting Assistant Attorney General, Office Of Legal Counsel, U.S. Dep't of Justice (July 29, 1988) [hereinafter Koop letter], cited in Kmiec opinion, supra note 73, at 7-9. In his letter to Kmiec, Koop stated that

Koop letter, supra 1-2,cited in Kmiec opinion, supra note 73, at 8.

⁸⁵ But see Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524, 1536-38 (M.D. Fla. 1987)(court prohibited school district from barring three hemophiliac brothers who tested seropositive for HTLV-III but otherwise were asymptomatic from attending regular school classes).

⁸⁶ 45 C.F.R § 84.3(j)(2)(iii) (1987); see supra notes 31-36 and accompanying text.

⁸⁷ It has been noted that the majority of asymptomatic carriers of HTLV-III who know of their infection will limit their major life activities of procreation and intimate personal relations because of the significant risk that the AIDS virus will be transmitted while the baby is in utero. There also is a substantial risk that the virus will be transmitted to their sexual partner unless sex is practiced safely. Kmiec opinion, supra note 73, at 10-11 (citing C. KOOP, SURGEON GENERAL's REPORT ON ACQUIRED IMMUNE DEFICIENCY SYNDROME 14-18, 20-21 (1986)). It also has been noted that asymptomatic carriers of HTLV-III can have a number of their major life activities limited because they are perceived and treated by others as having an impairment which limits their activities when, in fact, the impairment does not limit their ability to function. Id. at 12 (quoting School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 284 (1987)).

⁸⁸ Id. (quoting Southeastern Community College v. Davis, 442 U.S. 397, 405-06 n.6 (1979), quoted in Arline, 480 U.S. at 285).

The Kmiec opinion noted that the Arline Court interpreted § 504, as amended, as protecting individuals whose major life activities are impaired because they incorrectly are regarded as being handicapped. As a result, “the perceived impairment need not directly result in a limitation of a major life activity, so long as it has the indirect effect, due to the misperceptions of others, of limiting a life activity.” Id. at 12-13 & n.14 (citing Arline, 480 U.S. at 282 n.9) (noting that in the legislative history of § 504 some members of Congress stated “that the perception of a physical disability by others does not have to include the belief that the perceived condition results in a limitation of major life activities, but simply that the perception of the condition by others in itself has that effect“).

⁸⁹ See generally Friedland, Saltzman, supra note 8. For a brief description the findings of the Friedland, Saltzman study, see supra note 9.

⁹⁰ This type of reasoning can be seen in Martinez v. School Board of Hillsborough County, Florida. 675 F. Supp. 1574 (M.D. Fla. 1987). In Martinez, the court was highly concerned with the risk which Eilana, a mentally handicapped, incontinent, AIDS-linked child, posed to her classmates. Although the court's concern with public health and safety risks tended to overpower its analysis of whether reasonable accommodations could be made, the court, in upholding the school board's decision to exclude Eilana stressed that it was the combination of Eilana's physical, mental and neurological problems which led to its decision. For a discussion of the case, see infra text accompanying notes 138-54.

⁹¹ 45 C.F.R. § 84.4(k)(l)(4) (1987).

⁹² Wegner, supra note 29, at 405, 429-42 (noting that the focus of the court's analysis of a § 504 claim varies slightly depending upon whether the plaintiff brought the claim as a result of being excluded from participating in a program operated by the defendant-recipient, as a result of discriminatory employment practices by the defendant-recipient, or as a result of being denied the benefits provided by the program the defendant-recipient operates).

⁹³ 5 C.F.R. at §84.32(A).

⁹⁴ Id. at § 84.32(B).

⁹⁵ Id at § 84.33(A).

⁹⁶ Id. Additionally, the Act provides that all education, aids and services provided must adhere to procedures which satisfy the requirements of 45 C.F.R. §§ 83.34, 83.35 and 84.36. These include providing adequate transportation to and from programs that the recipient does not operate, but which the handicapped person needs to attend in order to receive an appropriate education; providing residential placement if it is necessary for an appropriate education; and requiring the recipient to place the handicapped person in a regular educational environment to the maximum extent appropriate to the needs of the handicapped person unless the recipient is able to demonstrate “that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.“ Id. at § 84.34(a). If the recipient places the handicapped person in a setting other than the regular educational environment, it must ensure that the facilities, services and activities are comparable to its other facilities, services and activities. Id. at §§ 84.34(a)(b) & (c).

⁹⁷ Id. at §§ 84.34(a)(b) & (c).

⁹⁸ W. at §§84.35-.36.

⁹⁹ Hairston v. Drosick, 423 F. Supp. 180, 183 (S.D.W. Va. 1976), quoted in Board of Educ. v. Cooperman, 507 A.2d 253, 276 (N.J. Super. A.D. 1987).

¹⁰⁰ Cooperman, 507 A.2d at 276; Hairston, 423 F. Supp. at 183.

¹⁰¹ See Martinez v. School Dist. Bd. Hillsborough County, Fla., 675 F. Supp. 1574 (M.D. Fla. 1987); Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524 (M.D. Fla. 1987); Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376 (CD. Cal. 1987); Board of Educ. v. Cooperman, 105 N.J. 587, 523 A.2d 655 (1987); District 27 Community School v. Board of Educ, 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986); Asymptomatic Infection, supra note 73, at 575 & n.76.

¹⁰² See infra text accompanying notes 103-09; see also Ray, 666 F. Supp. at 1531-32; Thomas, 662 F. Supp. at 381. Both the CDC and AAP recommend that the policy and procedures listed in their guidelines and recommendations be adopted by school districts even if no child who is known to have AIDS, ARC or who is known to be a carrier of HTLV-III currently is attending school within the district because the procedures will prevent the transmission of other diseases which are considered to be more contagious and infectious, and it will eliminate the risk of HTLV-III being transmitted if an infected child is attending school without the district's knowledge of her infection. Centers for Disease Control, Education and Foster Care of Children Infected with Human T-Lymphotropic Virus Type III'/Lymphadenopathy-Associated Virus, in CENTERS FOR DISEASE CONTROL, AIDS: RECOMMENDATIONS AND GUIDELINES NOVEMBER 1982- NOVEMBER 1986 55-57 (1987)[hereinafter Education and Foster Care].

¹⁰³ Ray, 666 F. Supp. at 1531 (quoting AMERICAN ACADEMY OF PEDIATRICS, REPORT OF THE COMMITTEE ON INFECTIOUS DISEASES (1986)).

¹⁰⁴ Id. at 1531-32; see also Education and Foster Care, supra note 102.

¹⁰⁵ See, e.g., Ray, 666 F. Supp. at 1533-34; District 27, 130 Misc. 2d at 417-19, 502 N.Y.S.2d at 335-36 (1986).

¹⁰⁶ See Ray, 666 F. Supp. at 1532, 1536-37; District 27, 130 Misc. 2d at 417-19, 422-23, 502 N.Y.S.2d at 335-36, 341-42.

¹⁰⁷ For a list of the factors which are to be considered in determining whether an accommodation overcomes the effects of a person's handicap, or will cause undue hardship on the defendant-recipient, see 45 C.F.R. §§ 84.12, .34-.38 & App. A, at 354-56 (1987).

¹⁰⁸ Id. at App. A, at 354.

¹⁰⁹ See Ray, 666 F. Supp. at 1524; Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376 (CD. Cal. 1987).

¹¹⁰ Education and Foster Care, supra note 102, at 56-57.

¹¹¹ 662 F. Supp. 376 (CD. Cal. 1987).

¹¹² Five months prior to Ryan's admission and subsequent expulsion from kindergarten, the school district had adopted a policy regarding the admission of children who were infected with AIDS and other communicable diseases. This policy required the creation of a Placement Committee which would make recommendations to the local school board on the placement of children who fell within the ambits of the policy. Although Ryan was eligible under California law to attend kindergarten, the school board required that the Placement Committee make a recommendation regarding his admission.

The Placement Committee had recommended Ryan's admission. On September 2, 1986, the school board had accepted this recommendation, and on the following day Ryan began attending classes. On his fourth day of school, Ryan bit his classmate's pants leg and was barred from classes until the Placement Committee could reconsider their recommendation “in light of [the] incident and determine ‘whether or not Ryan's potential for again biting another student poses any danger to the health of others in the class.’ “ Id. at 380.

Following the Placement Committee's recommendation, the school board appointed Dr. Marcus Shriva, a psychologist who was employed by the San Obispo County Board of Education. Dr. Shriva concluded that Ryan's social and language skills and maturity level, which were below those of his classmates, were the cause of his aggressive behavior, and the form this behavior might take was unpredictable. Id. at 380-81. Based on Dr. Shriva's study, the Placement Committee recommended that Ryan be excluded from kindergarten classes and provided with home tutoring for the rest of the academic year. The school board decided only to exclude Ryan and provide him with home tutoring until January 1987. The school board stated that at that time, after Ryan had undergone evaluation, it would reconsider its decision. Id. at 381.

¹¹³ Id. at 380.

¹¹⁴ Id. at 379.

¹¹⁵ Id. at 381 (citing 45 C.F.R. § 84.3(J)(2)(ii) (1987)); see also District 27 Community School Bd. v. Board of Educ, 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986)).

¹¹⁶ Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376, 379 (CD. Cal. 1987).

¹¹⁷ Id. (“[p]eople infected with the AIDS virus suffered significant impairments of their major life activities … . [they] may have difficulty caring for themselves, performing manual tasks, walking, speaking, seeing, hearing, breathing, learning and working, among other life functions … . [and] [e]ven those who are asymptomatic have abnormalities in their hemic and reproductive systems making procreation and childbirth dangerous to themselves and others“).

¹¹⁸ Id. at 380.

¹¹⁹ Id.. at 378.

¹²⁰ Id.

¹²¹ Id.

¹²² Id.

¹²³ Id. at 380.

¹²⁴ Id. at 382.

¹²⁵ For a discussion of the courts’ unwillingness to give effect to discriminatory viewpoints, see infra text accompanying notes 174-203; see City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); District 27 Community School Bd. v. Board of Educ, 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986).

¹²⁶ Thomas, 662 F. Supp. at 382

¹²⁷ Id. at 377 (emphasis added). Section 84.34(b) of title 45 of the C.F.R., in combination with 29 U.S.C. § 794, provide that handicapped persons who are otherwise qualified to be educated in a regular classroom setting shall be permitted to participate in nonacademic and extracurricular activities to the maximum extent appropriate to the needs of the person. 29 U.S.C. § 794 (1987); 45 C.F.R. § 84.34(b) (1987). Section 48213 of the California Education Code provides that before a child can be excluded from school under section 48212, the child's parents or guardians must be notified in writing of the proposed exclusion. Post-notification of a child's exclusion only is permitted if the exclusion is pursuant to the Health and Safety Code or the school principal “determines that the continued presence of the child would constitute a clear and present danger to the life, safety or health of other pupils or personnel.” CALIF. EDUC. CODE § 48213 (West Supp. 1989). In order to ensure the child's right to due process, the notification letter must contain a statement of the facts on which the decision is based and enumerate the procedures that the parents or guardians may pursue on behalf of the child. These rights include meeting with the governing authority to discuss the proposed exclusion, examining all documents used in making the decision, challenging the evidence and witnesses and presenting their own evidence and witnesses on the child's behalf with or without representation. The letter also must state that any decision to exclude is subject to periodic review according to a specific set of procedures. Id.; see also CALIF. EDUC. CODE § 48212 (West 1988)(providing that the governing board of a school may exclude from school “any child whose physical or mental disability which is such as to cause his attendance to threaten the welfare of other pupils“).

¹²⁸ Thomas, 662 F. Supp. at 382-83.

¹²⁹ See, e.g., Martinez v. School Dist. Bd. Hillsborough County, Fla., 675 F. Supp. 1574 (M.D. Fla. 1987); Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524 (M.D. Fla. 1987); District 27 Community School v. Board of Educ, 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986).

¹³⁰ Medical experts do not consider the AIDS virus to be as infectious as the hepatitis B virus. The two viruses often are compared to each other because both are blood-borne and can be transmitted through sexual contact, exposure to contaminated blood and blood products and in utero. Although there are epidemiologic similarities between HTLV-III and the hepatitis B virus, the hepatitis B virus is considered to be more infectious than HTLV-III because the hepatitis B virus also can be transmitted through less intimate forms of contact. See Centers for Disease Control, Summary: Recommendations for Preventing Transmissions of Infection with Human T-Lymphotropic Type IIIVLymphadenopathy-Associated Virus in the Workplace, 34 MORBIDITY & MORTALITY WEEKLY REP. 681, 682-83 (1985).

In New York State Association for Retarded Children v. Carey, the court addressed the issue of whether the New York City Board of Education's decision to segregate mentally retarded children, who were infected with hepatitis B, from their noninfected classmates in a special education classroom was valid. The Court of Appeals for the Second Circuit held that the Board of Education's action violated § 504. Carey, 466 F. Supp. 487 (E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2d Cir. 1979). Noting that the Board of Education had been unable to prove anything more than “a purely theoretical risk of [the] spread” of the disease, 466 F. Supp. at 502, the court stated that an action of segregation only would be upheld if there was evidence that mentally retarded children who were carriers of hepatitis B posed a health hazard to their classmates or that there was a “significant risk that the disease would be transmitted from one child to another” through any of the activities in the special education classroom. 612 F.2d at 650.

¹³¹ 666 F. Supp. 1524 (M.D. Fla. 1987).

¹³² Id. at 1525-26. The plaintiffs raised a number of claims including that the defendant had violated both § 504 of the Rehabilitation Act and the equal protection clause of the Constitution. In Ray, the court noted that originally Candy Ray, the younger sister of three hemophiliac boys who had been excluded from attending classes after testing seropositive for HTLV-III, also had been excluded from attending classes. The school district, however, permitted her to return to school after being excluded from classes for a few weeks. As a result, she was not a party to the action which eventually was brought against the school district. Id. at 1528.

¹³³ Id. at 1535. The court noted that while “[t]he U.S. Public Health Service has estimated that twenty to thirty percent of the seropositive population may develop AIDS by 1991 … . other medical experts postulate that the number of ‘healthy carriers’ who eventually develop AIDS may be as much as ninety percent of the seropositive population.” Id. at 1529- 30.

¹³⁴ Id. at 1529.

¹³⁵ Id. (emphasis in original).

¹³⁶ Id. at 1530-31; see Friedland, Saltzman, supra note 8, at 344-48; supra note 9 and accompanying text.

¹³⁷ Ray, 666 F. Supp. at 1538.

¹³⁸ 675 F. Supp. 1574 (M.D. Fla. 1987).

¹³⁹ Id. at 1580 (citing CENTERS FOR DISEASE CONTROL, AIDS: RECOMMENDATIONS AND GUIDELINES NOVEMBER 1982-NOVEMBER 1986 (1987); AMERICAN ACADEMY OF PEDIATRICS, REPORT OF THE COMMITTEE ON INFECTIOUS DISEASES (1986)).

¹⁴⁰ See id. at 1574.

¹⁴¹ Id at 1576-78.

¹⁴² Id. at 1580-81.

¹⁴³ Id

¹⁴⁴ Id. (quoting CENTERS FOR DISEASE CONTROL, AIDS: RECOMMENDATIONS AND GUIDELINES NOVEMBER 1982-NOVEMBER 1986 (1987); AMERICAN ACADEMY OF PEDIATRICS, REPORT OF THE COMMITTEE ON INFECTIOUS DISEASES (1986)).

¹⁴⁵ see also 45 C.F.R. § 84.34 & App. A, at 355 (1987).

¹⁴⁶ Martinez, 675 F. Supp. at 1583 (citing School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987); Ray v. DeSoto County School Dist., 666 F. Supp. 1524 (M.D. Fla. 1987); Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376 (CD. Calif. 1986); District 27, 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986)).

The District 27 case arose when the Board of Education for New York adopted a policy of not excluding AIDS-linked children from attending classes in the state of New York. As a result of this policy, the Chancellor of the New York City Schools, on the recommendation of a four-member panel of the New York City Department of Health, permitted a child with AIDS to attend school in an unrestricted school setting. This decision led two local school boards to seek a temporary restraining order and a permanent injunction against the Board of Education. The local school boards wanted the Board of Education to adopt an exclusion policy which would prohibit any children with AIDS from attending classes in a school which also was attended by noninfected children. Id. at 401, 502 N.Y.S.2d at 328.

Recognizing that a child with AIDS or ARC would be considered handicapped under section 504 of the Rehabilitation Act, the court stated that under section 504 the local school boards’ proposed automatic exclusion policy was violative of the rights of children infected with AIDS or ARC. The court, however, chose to evaluate the proposed automatic exclusion policy under the equal protection clause of the Constitution for two reasons. Id. at 413, 502 N.Y.S.2d at 335 (citing 29 U.S.C. § 749 (1986)).

Before evaluating the proposed policy under the equal protection claim, the court explained why it had chosen to reject the section 504 claim. First, the court said that an analysis of the proposed policy under section 504 would be improper because there had been no prima facie show of discrimination. Id. at 415, 502 N.Y.S.2d at 337. In order to establish a prima facie case under section 504, the plaintiff has to fall within the Act's definitions of “handicapped individual” and “otherwise qualified.” This had not been done because the local school boards had not met their burden under section 504 of showing that the Board of Education's nonexclusion policy either was discriminatory or, if implemented, would result in a significant risk to the health, safety and welfare of other children. The District 27 court stated that it could not place the burden of validating the Board of Education's nonexclusionary policy upon the school authorities, even though it felt that the local school boards’ proposed policy of excluding “children diagnosed as having AIDS while not excluding children with ARC or those merely infected with HTLV-III … would constitute discrimination under section 504 of the Rehabilitation Act.” Id.

The court's second reason for rejecting the plaintiff's section 504 claim was that it believed an analysis of the proposed policy under the equal protection clause would better ensure that other categories of AIDS-linked children, besides those who actually have AIDS or ARC or who are infected with HTLV-III, would be protected from irrational discrimination. Id. at 415-16, 502 N.Y.S.2d at 337. Children who are members of a high risk group or who have family members who are in a high risk group may not be considered to fall within the statutory definition of a “handicapped individual” because this finding depends upon a liberal interpretation of the statute's definitions. These same children, however, can establish a prima facie case of discrimination under the equal protection clause. This is because the plaintiff only has to identify similarly situated classes who have not been equally burdened.

For a more complete discussion of District 27, see infra text and accompanying notes 183- 207.

¹⁴⁷ Martinez, 675 F. Supp. at 1583.

¹⁴⁸ Id. at 1580 (quoting CENTERS FOR DISEASE CONTROL, AIDS: RECOMMENDATIONS AND GUIDELINES NOVEMBER 1982-NOVEMBER 1986 (1987); AMERICAN ACADEMY OF PEDIATRICS REPORT OF THE COMMITTEE ON INFECTIOUS DISEASES (1986)).

¹⁴⁹ See supra text accompanying notes 56-64, 102-11.

¹⁵⁰ Martinez, 675 F. Supp. at 1583.

¹⁵¹ Thomas v. Atascadero Unified School Dist., 662 F. Supp. 376, 382-83 (CD. Cal. 1987); see also Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524, 1529 (M.D. Fla. 1987); Soto, supra note 1, at 193 (quoting Morrow, The Start of a Plague Mentality, TIME, Sept. 23, 1985, at 92).

¹⁵² Martinez, 675 F. Supp. at 1580.

¹⁵³ Thomas, 662 F. Supp. at 380-81; see also Ray, 666 F. Supp. at 1531.

¹⁵⁴ The Martinez court's reasoning goes against the reasoning expressed by the Court of Appeals for the Second Circuit in New York State Association for the Mentally Retarded v. Carey. 466 F. Supp. 487 (E.D.N.Y. 1978), aff'd 612 F.2d 644 (2d Cir. 1979). In Carey, the court held the New York City Board of Education's decision to segregate mentally retarded children who were infected with hepatitis B from their noninfected classmates to be invalid. Although the school board's concern that the disease would spread through the activities in the special education classroom was legitimate, the court held the concern to be unreasonable because it was based upon “a purely theoretical risk of [the] spread” of the disease. Carey, 466 F. Supp. at 502.

¹⁵⁵ See Martinez v. School Bd. of Hillsborough County, Fla., 861 F.2d 1502, 1505-07 (1 lth Cir. 1988) (court vacated trial court's finding that there was a remote possibility of transmission and remanded the case for the court to make findings with respect to the overall risk of transmission).

¹⁵⁶ See Alexander v. Choate, 469 U.S. 287 (1985). While not overruling the application of the intent test to determine compensatory damages, the Court noted that in some cases the use of a discriminatory effects test is applicable. Under a discriminatory effects test, the plaintiff must show that the discriminatory effect of the defendant's action would have been avoided if the defendant had made reasonable accommodations for the plaintiff's handicap. See also Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983)(Court limited compensatory relief under § 502(a)(2) of Title VI to cases in which intentional discrimination is proven); Briggs, Safeguarding Equality for the Handicapped: Compensatory Relief Under Section 504 of the Rehabilitation Act, 1986 DUKE L. REV. 197, 199 (Briggs notes that “[b]ecause section 502(a)(2) links the remedies available under section 504 to those available under Title VI, some courts [have] concluded from Guardians that damages may be awarded in a section 504 action, but only after a showing of purposeful discrimination“).

¹⁵⁷ U.S. CONST, amend XIV, § 1.

¹⁵⁸ See, e.g., San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

¹⁵⁹ City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).

¹⁶⁰ Id.; Plyer v. Doe, 457 U.S. 202, 216-17 (1982).

¹⁶¹ Zablocki v. Redhail, 434 U.S. 374 (1978).

¹⁶² Griswold v. Connecticut, 381 U.S. 479 (1965).

¹⁶³ Shapiro v. Thompson, 394 U.S. 618 (1969).

¹⁶⁴ Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

¹⁶⁵ Frontiero v. Richardson, 411 U.S. 677 (1973).

¹⁶⁶ United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938).

¹⁶⁷ San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1978).

¹⁶⁸ Id.

¹⁶⁹ Id. at 35.

¹⁷⁰ See, e.g., id. at 28 (denning a suspect class as a class “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process“).

¹⁷¹ Plyler v. Doe, 457 U.S. 202, 217 (1982). The Court has indicated that “recurring consitutional difficulties” is evidenced by the class which is alleging the discrimination having a few, but not all, of the characteristics of a suspect class. If the class possesses a few of these characteristics, it most likely will have been subjected to repeated violations of its constitutional rights and can be considered a quasi-suspect class.

¹⁷² San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 44, 55 (1973); Plyler, 457 U.S. at 216.

¹⁷³ See Williamson v. Lee Optical, 348 U.S. 483 (1955)(state statute making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses or duplicate or replace lenses upheld because the legislature may use a one step at a time method to institute reform, and is entitled to address the phase of the problem which seems the most acute).

¹⁷⁴ 473 U.S. 432 (1985).

¹⁷⁵ Id. at 435-37 (under the city's zoning ordinance a group home for the mentally retarded only was permitted to operate in areas which were zoned for multiple dwellings unless a special use permit was obtained).

¹⁷⁶ Id. at 442.

¹⁷⁷ Id. at 440 (Court stated that race, alienage or national origin are the only “suspect“ classes which are entitled to strict scrutiny).

¹⁷⁸ Id. at 442.

¹⁷⁹ See supra notes 25-29 and accompanying tex

¹⁸⁰ Cleburne, 473 U.S. at 442-43.

¹⁸¹ Id. at 443-45.

¹⁸² Id. at 448-50.

¹⁸³ 130 Misc. 2d 398, 502 N.Y.S.2d 325 (1986).

¹⁸⁴ This panel was created by the New York City Health Department after Mayor Koch; Nathan Quinones, Chancellor of the New York City School; James Reagon, President of the Board of Education; and Dr. David Sencer, Health Commissioner issued a joint statement on August 30, 1985 announcing a policy under which all children who were reported to have AIDS or who were suspected to have AIDS “would be reviewed on a case-by-case basis to determine whether their health and development permitted them to attend school in an unrestricted setting.” Id. at 401, 502 N.Y.S.2d at 328.

¹⁸⁵ Id.

¹⁸⁶ The court argued that the virus potentially could be transmitted through human bites, nosebleeds, or the practice of becoming blood brothers or sisters. Id. at 407-08, 502 N.Y.S.2d at 332.

¹⁸⁷ Id. at 415-17, 502 N.Y.S.2d at 337 (quoting Plyler v. Doe, 457 U.S. 202, 222 (1982); Hairston v. Drosick, 423 F. Supp. 180, 183 (S.D.W. Va. 1976)).

¹⁸⁸ Id. at 416, 502 N.Y.S.2d at 341-42 (quoting Brown v. Board of Educ, 347 U.S. 483, 493 (1954)).

¹⁸⁹ 457 U.S. 202(1982).

¹⁹⁰ Id. at 230.

¹⁹¹ Id. at 204, 227-30.

¹⁹² Id. at 234 (Blackmun, J., concurring).

¹⁹³ Id. at 222; District 27, 130 Misc. 2d at 416, 502 N.Y.S.2d at 341-42.

¹⁹⁴ District 27, 130 Misc. 2d at 407-08, 502 N.Y.S.2d at 332.

¹⁹⁵ Id. This reasoning is quite similar to the analysis which a court uses when determining whether a handicapped individual is “otherwise qualified” within the meaning of section 504 of the Rehabilitation Act and in determining what reasonable accommodations a defendantrecipient may be required to make so that an “otherwise qualified handicapped individual“ can participate in its program.

¹⁹⁶ Id. at 408-09, 502 N.Y.S.2d at 332-33 (citing N.Y. CITY PUB. HEALTH CODE §§11.11- .15, 45.17(b), 49.15(d) (1983)).

¹⁹⁷ N.Y. PUB. HEALTH L. §§ 220, 225 (West 1988); see also District 27, 130 Misc. 2d at 410, 502 N.Y.S.2d at 333-34.

¹⁹⁸ District 27, 130 Misc. 2d at 409-10, 502 N.Y.S.2d at 333-34.

¹⁹⁹ Id. at 410, 502 N.Y.S.2d at 334.

²⁰⁰ Id. at 406-08, 502 N.Y.S.2d at 324.

²⁰¹ Id. at 417, 502 N.Y.S.2d at 338.

²⁰² Id.

²⁰³ Id. at 408, 502 N.Y.S.2d at 332. The court noted that the procedures which are recommended are the same ones which are recommended for when an individual comes in contact with hepatitis B:

Id; see abo New York State Ass'n for Retarded Children v. Carey, 466 F. Supp. 487 (E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2d Cir. 1979), cited in District 27, 130 Misc. 2d at 413-17, 502 N.Y.S.2d at 336-38.

²⁰⁴ District 27, 130 Misc. 2d at 413-17, 502 N.Y.S.2d at 336-38

²⁰⁵ See Williamson v. Lee Optical, 348 U.S. 483 (1955). .

²⁰⁶ District 27, 130 Misc. 2d at 413, 502 N.Y.S.2d at 335.

²⁰⁷ Id. (quoting Viemeister v. White, 79 N.Y. 235, 241, 72 N.E. 97, 97 (1904))

²⁰⁸ Arguably, being an AIDS-linked child also is an immutable characteristic. This especially is true for children who are born with HTLV-III, ARC or AIDS.

²⁰⁹ See Plyler v. Doe, 457 U.S. 202 (1982). For a brief discussion of Plyler, see supra text accompanying notes 191-93.

²¹⁰ See supra text accompanying notes 30 Be 53-60.

²¹¹ See supra text accompanying notes 29-41.

²¹² See Copeland v. Philadelphia Police Dep't, 840 F.2d 1139, 1148-49 (3rd Cir. 1988) (court held that even though police officer who was dismissed for using illegal drugs was a “handicapped individual” within the meaning of section 504 of the Rehabilitation Act of 1973, the officer failed to prove that he was “otherwise qualified” to hold his position because “accommodating a drug user within the ranks of the police department would constitute a ‘substantial modification’ of the essential functions of the police department and would cast doubt upon the integrity of the police force“); Norcoss v. Sneed, 755 F.2d 113 (8th Cir. 1985)(court held that after plaintiff has fulfilled her burden of establishing a prima facie case that she is a handicapped person who is otherwise qualified to perform the job for which she was not hired, the burden of persuasion does not shift to the defendant because it would impermissibly shift burden on the ultimate issue to the defendant); Doe v. New York Univ., 511 F. Supp. 606 (S.D.N.Y. 1981)(court held that findings and recommendations by the Department of Health, Education and Welfare and Department of Education in favor of the plaintiff did not shift the burden of proving that the plaintiff, a medical student who had been refused readmission to the university after she had undergone psychiatric treatment, was otherwise qualified.).

²¹³ See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); District 27 Community School Bd. v. Board of Educ, 130 Misc. 2d 398, 415, 502 N.Y.S.2d 325, 336 (1986).